In today’s New York Times, Adam Liptak, the paper’s long-time legal correspondent and now Supreme Court guru, surveys the latest Supreme Court term that just ended this past Monday. He called Justice Kennedy “the most powerful jurist in America” – an especially scary proposition, since that can only mean more 5-4 decisions for the foreseeable future, with both the “liberal” and “conservative” wings of the Court courting the vote of America’s most powerful and perhaps fickle jurist.
The introduction of Sonia Sotomayor as the Supreme Court’s next Associate Justice will, of course, do little to change that power dynamic. As Liptak observes:
If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.
The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.
Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.
Sotomayor’s presence on the Court will, however, mean dark days for the criminally accused. As Liptak himself pointed out, when push comes to shove, Sotomayor has generally sided with the Government in criminal matters. The fact that Sotomayor received the endorsement of eight national law enforcement organizations is reason enough to be worried. The Alliance for Justice, a public interest organization, reviewed Sotomayor’s record on criminal matters as a judge in federal court in a lengthy report. It praised her “cautious style” which, according to the organization, “reveals the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law, while remaining alert to the rights of criminal defendants.” Judge Sotomayor couldn’t have said it better herself. More troubling is the fact that Sotomayor is supposed to have lived in areas like the South Bronx whose residents and communities have been ill-served by increasingly harsh and conservative policing and anti-crime policies crafted, as is the case here in Atlanta. Of course, reasonable people may differ on what “criminal justice” means, and Sotomayor’s current views on the matter are by no means an indication that she has forgotten her roots or those regular joes she often claims to have in mind when crafting her judicial decisions. Yet it is puzzling that for someone who shares Obama’s newly minted judicial philosophy of empathy for the individual, Sotomayor is all too comfortable siding with the institution and those in power. Then again, there is little indication she has ever strayed from that circle for most of her adult and professional life.
Barring any last-minute revelations, Sotomayor will eventually take the bench on the Supreme Court. When she does, Justice Roberts will have gained another ally in his quest to strip criminal defendants of their rights.